SOHAN SHYAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 227/2021

[2026] HKCFI 388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 227 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of India who arrived in Hong Kong on 24 December 2015 as a visitor with permission to remain as such up to 7 January 2016 when he did not depart and instead overstayed, and on 11 January 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the village president and followers as he supported his rival opponent during an election in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Dhanola, Punjab, India. After leaving school he worked as a restaurant helper in his home district to make his living, and supported the political party India National Congress Party (“INC”) regularly attended their local meetings and activities without holding any official post in the party.

3.  In 2015, during the local election of the village president of his home village, while assisting in the campaign of the INC candidate, the Applicant and his fellow INC supporters were threatened by the supporters of an independent candidate by the name of Gurmeet Singh (“GS”) who was in fact a local gangster, and on one occasion they were attacked by GS’s supporters and followers who were believed to be GS’s gang members that many of the INC supporters including the Applicant were injured, and as a result he was hospitalized for medical treatments of his injuries.

4.  After GS won the election and became the village president of Dhanola, his supporters became even more hostile against the INC supporters including the Applicant, and after hearing that false charges had been brought against him by GS’s supporters, the Applicant fled from his home village to hide in other places, and in mid-2015 he departed India for Malaysia, but subsequently returned to India after receiving news that his mother had come down with some serious health issues.

5.  However, as he was still afraid to return to his home village, the Applicant instead stayed in a friend’s place in Ludhiana, but later when he heard that GS had sent his gangsters looking for him everywhere, the Applicant decided that it was not safe to remain in India, and so on 24 December 2015 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 April  2018 with legal representation but failed to attend any scheduled screening interviews due to alleged medical issues.

6.  By a Notice of Decision dated 25 June 2018, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm from GS or his supporters or followers when relevant Country of Origin Information (“COI”) show that GS was in fact arrested by the Indian authorities for various criminal offense in 2012 and was serving terms of imprisonment during the period when the Applicant claimed to have been threatened or attacked by him and his supporters, that even if his account of events prior to his departure of India were true that the level of risk of harm from GS’s supporters or followers upon his return to India is assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of GS to seriously harm or kill him or any political reason to specifically target him given that he was just an ordinary INC supporter without any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective COI show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi or Chandigarh where it would be difficult if not impossible for GS or anyone to locate him.

8.  On 3 July 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 11 December 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from GS or his supporters/followers that caused him to leave his country to come to Hong Kong to seek protection, that as found by the Director that relevant COI show that at the time of the Applicant’s claimed threats and attacks from GS’s supporters/followers that GS was in fact in prison and had no reason political or otherwise to specifically target the Applicant for harm or any intention to seriously harm or kill him, and on his own concession at the hearing that in fact no charges had been brought against him by anyone prior to his departure of India that there is no evidence of any adverse interests of the police or authorities in him that it concluded that the Applicant had failed to establish any real risk of him facing any harm from GS or his supporters or followers upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 25 February 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI available before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1